Monday, Jun 09 2014
• 10 a.m. (ET)

New Questions about the Taliban Prisoner Swap for Bowe Bergdahl

In this undated image provided by the U.S. Army, Sgt. Bowe Bergdahl poses in front of an American flag.
U.S. Army via Getty Images

Army Sgt. Bowe Bergdahl was released on May 31 in exchange for five Taliban detainees held at Guantanamo Bay prison. Bergdahl is recovering at a military hospital in Germany and says he does not yet want to speak to his family, but did tell officials he was held in a cage by his Taliban captors after an attempted escape. The Obama Administration insists the deal made for Bergdahl was a good one, but critics say there is no evidence Bergdahl’s life was in danger and that Congress should have been notified. Others ask why the five detainees were released without tougher restrictions on their movement. We discuss new questions about the terms of the Bowe Bergdahl prisoner exchange and what it means for national security.

Guests

David Sanger
chief Washington correspondent, The New York Times; author of "Confront and Conceal: Obama's Secret Wars and Surprising Use of American Power."

David Cole
law professor, Georgetown University Law Center and author, "The Torture Memos: Rationalizing the Unthinkable." His previous books include "Less Safe, Less Free" and "Terrorism and the Constitution."

Clifford May
president of the Foundation for Defense of Democracies and weekly “Foreign Desk” columnist, The Washington Times

Transcript

10:06:53

MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Sgt. Bowe Bergdahl continues to recover at a military hospital in Germany, but there are many questions about the circumstances of his capture and the deal struck with the Taliban to secure his release. Joining me in the studio to talk about the deal that freed Bowe Bergdahl, implications for national security and the future of Guantanamo Bay prison: David Cole of Georgetown University Law School, David Sanger of The New York Times, and Clifford May of the Foundation for Defense of Democracies.

10:07:32

MS. DIANE REHMI invite you, as always, to be part of the program. You can weigh in by calling us at 800-433-8850. Send an email to drshow@wamu.org. Follow us on Facebook or Twitter. And welcome to all of you.

10:07:53

MR. DAVID COLEGood morning.

10:07:54

MR. DAVID SANGERThank you.

10:07:54

MR. CLIFFORD MAYGreat to be here.

10:07:54

REHMDavid Sanger, the rhetoric on Bowe Bergdahl and the criticism seem to have shifted a little bit in the last few days. Tell us what's happening.

10:08:09

SANGERWell, Diane, they have shifted. I think in the first few days, there were a lot of questions about was it worth it to go to the effort to bring out somebody who there were suspicions had just walked away from his post. And you saw that even on the cover of Time magazine this week where they said explicitly, was he worth it.

10:08:32

SANGERI think that's been pretty well tamped down. I think that, in the end, the chairman of the joint chiefs of staff, Martin Dempsey, the president, in his own arguments, has made a pretty persuasive case that the American way of doing this is you bring back your POWs. And then if there are issues, legal issues, moral issues, whatever, you sort it out when they're back here and they're healthy, and you can actually do this in...

10:09:01

REHMSo what are the new arguments?

10:09:04

SANGERThe new argument is this: It's whether or not the decision to turn over five Taliban leaders was the right decision given the fact that the deal in 2011 and 2012 was that turning them over would basically be a confidence-building measure toward an ultimate reconciliation deal between the Taliban and the Afghan government.

10:09:35

SANGERAnd the critique you're hearing now in Washington and in Kabul where, of course, the Afghan government was as clueless to this as Congress was, is that in the end, they didn't get anything other than Bowe Bergdahl himself for releasing these five Taliban.

10:09:53

REHMClifford May, how do you see the dialogue or the criticism or the rhetoric shifting?

10:10:02

MAYDiane, I agree with everything David just had to say, but I think there's also another layer. And that's the controversy over whether this was, from a strategic point of view, a good deal or a bad deal. And that's particularly important as the U.S. continues its negotiations with Iran over relieving economic sanctions in exchange for verifiable halt to their nuclear weapons program.

10:10:24

MAYThose negotiations begin again on Monday in Geneva, and there are a lot of people who are making a case. And I don't think it's a bad case, that this was, at the end of the day, a bad deal and would've been a bad deal, even if Bergdahl were a bona fide war hero because you are doing a couple of things. You are giving legitimacy to the Taliban that they didn't have before.

10:10:46

MAYYou're returning to the battlefield within a year, and in some ways much earlier than that, five very, very senior commanders of the Taliban. There's also this -- I want to just get in here. The idea, the principle that we leave no soldier behind is a commendable principle, no question. But it is not an unlimited principle. And try this thought experiment. Let's suppose the Taliban said, we don't want five Taliban commanders.

10:11:16

MAYWe want one detainee from Gitmo. We want Khalid Sheikh Mohammed, the architect of the 9/11 attacks. Would this have still been a good deal then? If they had said, we don't want any detainees. We do need a small tactical nuclear weapon. We do need chemical weapons. We do need five Apache helicopters to continue this fight. Would that have been a good deal? So the question of whether it was a bad deal being spun as a good deal is very important going forward because we have other sensitive negotiations underway.

10:11:46

REHMClifford May, he's with the Foundation for Defensive Democracies and weekly foreign desk columnist for The Washington Times. David Cole, another aspect of the rhetoric has been criticism of the president for not informing the Congress. Was he under constitutional obligation to inform the Congress?

10:12:18

COLEWell, certainly not under constitutional obligation to inform the Congress. There was a statute in place that provided that, before he releases people from Guantanamo, he must give Congress 30 days' notice, but what the administration said was that you have to read that in light of the unusual circumstances here. That is, the statute is entirely unthinkable that Congress would've passed a statute that said, give us 30 days' notice about the release of any Guantanamo detainee, even if the life of a POW, American POW, might be lost by providing us with notice.

10:12:57

COLENo member of Congress would've voted for that, and so the administration, I think, properly read the statute not to apply to this extraordinary circumstance where you're doing it in a negotiated deal where the life of an American POW is at stake. And then there's an additional argument which is that constitutionally it's not Congress' call, negotiating over the release of American POWs is an executive function of the commander in chief. So even if Congress had sought to pass that statute, which I think no member of Congress would've, in fact, passed, voted for, it might well have been unconstitutional.

10:13:35

REHMHow about the health of Bowe Bergdahl and how severely his health was being affected?

10:13:46

COLEWell, I think, you know, I think there were initial claims that his health was at issue. They've somewhat backed off of that. But, you know, the reality is when you're negotiating over a detained individual, there's always a question about whether this person's going to survive or not. And negotiations, you know, there's a reason we don't send 600 members of Congress over to, you know, other countries to negotiate very sensitive matters.

10:14:12

COLENegotiations can't take place within that kind of context. So I think it's perfectly reasonable in the context of a high stakes negotiation where the life and liberty of an American is at stake, that the president has the right to make that decision.

10:14:26

REHMDavid Cole, professor of law at Georgetown University, author of "The Torture Memos: Rationalizing the Unthinkable." David Sanger, I know you wanted to add to that, but bring in, if you would, the statements we're now hearing that, indeed, Bowe Bergdahl was tortured. To what extent do we know the facts regarding that?

10:14:57

SANGERWell, we published in The Times on Sunday, thanks to the great work of my colleague Eric Schmidt, was that he had tried to escape it seems at least twice and that after those escape attempts he appears to have been kept or he said to the people who are treating him, he was kept in some kind of a cage along the way. So it sounds very kind of Vietnam-era, totally darkened, right.

10:15:24

REHMTotally dark.

10:15:28

SANGERThat's all we know right now, and I think it's going to be a while before we probably learn a fair bit more about his accounts. And I'm not sure that there's any way to get anybody else's account other than his. David made just the right point about the fact that there's no constitutional requirement and that in the statutory requirement, we've heard Denis McDonough, the White House chief of staff, say we didn't have 30 days.

10:15:55

SANGERAnd I think that's probably true as well as we have put together the timeline. But that's a different question from whether it would've been politically wise to bring in Congress here. There is a group within Congress called the Gang of Eight, which is frequently brought in on operational intelligence matters. They were brought in -- they knew that there were preparations being made. They didn't know many of the details for the bin Laden raid.

10:16:23

SANGERThey knew a fair bit about a number of other major covert programs, including some against Iran, and I can imagine that after the president signed the deal or had someone sign the deal with Qatar, that basically set up the rules under which these five Taliban would be held, he could've called in these eight Congressional leaders who run the intelligence and armed services committees and the Congressional leadership and said, look, I may need to move very quickly in the next few days or week. The statute calls for me to consult. I'm interested in hearing your opinion. That doesn't necessarily mean I have to listen to your opinion.

10:17:01

REHMOr wait to get a full opinion.

10:17:05

SANGEROr wait. That's right. So let's sit around and discuss it. Dianne Feinstein had already made her concerns pretty vocal in the end of 2011, 2012 when this came up earlier. She voiced those again on TV yesterday when she said that her biggest concern was you'd give up the Taliban before you knew what you were getting in return. She could've said that. What it would've done is insulated them a little bit against this narrative that they had frozen out Congress, which they'd done before in other cases.

10:17:37

REHMDavid Sanger of The New York Times. Clifford May, you wanted to comment.

10:17:42

MAYJust a little bit. I agree with what David Sanger just said. I think bringing someone like Sen. Dianne Feinstein, who, after all, is the Democratic chairman of Senate intel, she would've liked to be and she would've been probably saying different things right now about this had she been consulted whether or not her consultations had been accepted. Don't forget, this is something that has -- this exchange has been talked about for years. Leon Panetta was against it back some years ago, and there were others who were...

10:18:11

SANGERSo was Adm. Mullens.

10:18:11

REHMAnd so was Hillary Clinton.

10:18:13

MAYRight.

10:18:15

SANGERWe think so. I'm not -- yeah.

10:18:16

MAYYou know, it's not entirely clear, and I have to confess I have not been able to get a copy of the book and go see what she says.

10:18:21

REHMAll right. We've got to take a short break here. When we come back, we'll talk further about the implications of Bowe Bergdahl's release and in exchange, the release of five Taliban prisoners. Stay with us.

10:19:57

REHMAnd welcome back as we talk about the release of Bowe Bergdahl in exchange for five Taliban prisoners who were held at Guantanamo Bay. Here in the studio, Clifford May, president of the Foundation for Defensive Democracies. He's weekly foreign desk columnist for The Washington Times. David Sanger is chief Washington correspondent at The New York Times, author of "Confront and Conceal: Obama's Secret Wars and Surprising Use of the American Power." And David Cole, professor of law at Georgetown University and author of "The Torture Memos." And, Clifford May, I'm going to come back to you because I had to interrupt you midsentence.

10:20:55

MAYYeah, the only thing I wanted to add to that was -- and I think both Davids are right about this -- would agree -- that if the president had gone to Congress or to certain members of Congress, he would've soothed feelings, but it probably wouldn't have changed his decision. He might not have wanted to because he might've gotten some pushback in that this kind of an exchange had been discussed for years.

10:21:17

MAYAnd whether it's Leon Panetta or Dianne Feinstein, they wanted more than just Bergdahl back. They wanted other things. And they weren't necessarily comfortable with Bergdahl going to Qatar for a year. The other possibility, one other possibility is he's sent back to the government in Afghanistan, and they hold him under -- they hold these guys under house arrest, would've strengthened the government in Kabul, which now feels they have been weakened.

10:21:38

REHMDavid Cole.

10:21:39

COLEWell, you know, everyone can play Monday morning quarterback and second guessing I could've gotten a better deal. You know, none of us were there obviously. I'm very skeptical of this process of going to the Gang of Eight and consulting with them because, at the end of the day, it's the president's decision. At the end of the day, they can't do anything about it. And generally that process is used -- often used by administration simply to cover themselves so that afterwards they can say, well, we didn't inform Congress, but we told these eight members of Congress under conditions where they couldn't tell anybody else, and they couldn't take any action.

10:22:11

REHMAnd then there's still be lots of complaining.

10:22:13

COLEExactly. Everyone would still be complaining. I just -- and it wouldn't change anything. So it's a formality...

10:22:18

MAYCan I ask you, do you agree with the idea that there is such a thing as a bad deal, that a bad deal is...

10:22:24

COLEAbsolutely. On the substance, absolutely, but this is a process point. You know, did he have to consult? And, no, absolutely not.

10:22:30

MAYOn the process point, I agree.

10:22:31

SANGERAnd on the bad deal element, the interesting thing here is that the Taliban themselves walked away in 2012 from the idea of any kind of agreement toward reconciliation. And, frankly, if you put yourselves in the shoes of the Taliban, why would you sign that deal? The Americans were leaving, therefore they knew that the U.S. leverage was minimal.

10:22:54

SANGERSo at some point, President Obama had to make the decision, do you go for the bigger deal which was probably unattainable, as David suggested, or do you simply do a straight prisoner swap, put up with the heat, say, I'm a second-term president? That's what you do when you're in your second term. You do unpopular things and move on.

10:23:13

REHMAll right. And the Pakistani Taliban have claimed responsibility for an attack on the airport in Karachi. Is there a connection here, David?

10:23:27

SANGERThere's the loosest of connections. What really is going on here is that the Pakistani Taliban is trying to send a message to the government of Pakistan, not to us. We don't have any troops in Pakistan. Pakistan is really where the battle with the Taliban takes its biggest and most violent form. And it's also the place where it's much more strategically important to us how it turns out then in Afghanistan. Why is that?

10:23:55

SANGERPakistan is where 180 million people, 100 to 200 nuclear weapons and the biggest insurgency that we can think of in this territory all mix. And what was disturbing about this, apart from the loss of life which is pretty tragic, is that they ended up going into what you would think would be a pretty secure facility which is the VIP and cargo section to the Karachi Airport, a very big airport.

10:24:21

REHMDo you see a connection, Clifford May?

10:24:24

MAYI do, Diane, and it is a counterintuitive connection. I was in Pakistan a few years ago. And while I was there, there were five terrorist attacks that took place by the Pakistani Taliban, the most important of which was at the general headquarters of the military in Rawalpindi, just next to Islamabad, I mean, an astonishing thing because they got into the facility. They killed people, all that.

10:24:46

MAYNow, here's what I didn't understand that came clear to me when I was there. Many people in Pakistan at the highest levels of government make a distinction between the Taliban in Afghanistan and the Taliban in Pakistan. They think the Taliban in Afghanistan that kills Americans is a good thing and the Taliban in Pakistan that kills Pakistanis is a bad thing. And they are trying to keep that balance and also negotiate their settlement with the Pakistani Taliban. And it's a very dangerous situation and will be more so when we are -- once we have left Afghanistan.

10:25:19

REHMDavid Cole, what about the -- and this goes back to Bowe Bergdahl once again. What about the U.S. oft stated position, we do not negotiate with terrorists? How does that all figure into not only what the U.S. government did from the White House, but the public's perspective of this exchange?

10:25:50

COLEYeah, well, I think we don't negotiate with terrorists is a phrase that you hear. It's a principle to a degree, but it's not an absolute. I mean, it sounds absolute, but it's not an absolute. At some point, if you are going to get something of value from negotiating with terrorists, it makes sense to negotiate with terrorists. So Israel, which generally doesn't negotiate with terrorists either, makes exceptions when an Israeli person has been captured.

10:26:19

COLEAnd they've made trades where they've given -- freed a thousand alleged terrorists from their own captivity in order to gain the release of a single Israeli. So I just don't think it makes sense. I think in some instances you shouldn't negotiate with them. We certainly don't want to encourage them to engage in abductions, but you also have an American life at stake. And we're responsible for that American life.

10:26:42

REHMI wonder whether we ought to drop the phrase altogether because clearly governments do negotiate with terrorists, David.

10:26:52

SANGERThe phrase should be, we do not negotiate with terrorists except in those cases when we do. And obviously there's a long history of this. And remember, there was a huge debate within the State Department, both during the Bush Administration, again during the Obama Administration, even whether or not the Taliban in Afghanistan should be designated a terrorist entity. And, you know, in the end, we have ended up treating the (word?) combatants in this war than really is -- and as international terror group.

10:27:26

REHMSo, Clifford May, how much of a threat do you believe these five released Taliban prisoners pose?

10:27:37

MAYI think they represent a pretty big threat. I think that's why Mullah Omar, who is the head of the Afghan Taliban, is calling this a great victory. I think...

10:27:46

REHMWell, wouldn't he have done that anyway even if these were five minor people?

10:27:51

MAYThere are two review panels that President Obama himself established, and they call these the five most dangerous people at Guantanamo. If there is a Taliban government in Afghanistan a year, two, three, four years from now, figure these will be the -- they will be on the National Security Council.

10:28:07

REHMDavid Cole, do you agree?

10:28:09

COLEWell, I think you have to take into account the fact that there was essentially a kind of sell-by date for these guys anyway. Once we are out of Afghanistan, we're not involved in an armed conflict with the Taliban there. There is no longer any justified basis for detaining them unless we can try them and convict them for some sort of crime. And we've already made the determination that they couldn't have been tried. So they were on their way out the door anyway. It's just a little bit earlier. And with the Qatar agreement, it's not really that much earlier.

10:28:38

REHMBut a lot of people are upset by the agreement with Qatar that these folks have freedom to be with their families, to move freely. What are the restrictions, David?

10:28:53

SANGERWell, they're less than the restrictions that were being discussed in the 2011, 2012 deal. In those days, they were supposed to be under house arrest. In these conditions, they are free to move around Qatar. They can go to the market. They can move around. Now, Qatar's not that big a place, so they're not in house arrest. But they're not exactly going to be, you know, cruising terribly far. But...

10:29:15

REHMBut who's to stop them from communicating, from dealing...

10:29:20

SANGERSo the government in Qatar has made it pretty clear that they're going to keep a pretty close eye on them. And they're a pretty heavy duty authoritarian regime. That said, it's also been made clear to us, two things, first, the NSA, which has been listening to many things around the world, as we've discovered in this past year, is going to be pretty well-tuned into these guys, number one. And, number two, if they do go back to Afghanistan and they engage in the kind of activities that people worry about...

10:29:51

REHMAfter the year is up.

10:29:52

SANGER...after the year is up, I think you heard John Kerry all but say yesterday that they would be prime targets. That doesn't necessarily mean you'd be able to hit them, but I think the message was clear. The bigger thing to remember is that, just as Bowe Bergdahl has got a reintegration issue after five years, these guys have a big reintegration issue after 12 years.

10:30:17

SANGERMost of the people they commanded are dead. Mullah Omar, who you mentioned before, may be the only one left from that group who could pick them out of a crowd. And so it would be, Diane, as if the leadership of WAMU came back from 12 years ago and cruised right in and said, OK, we're ready to go start up again.

10:30:38

REHMFrom WAMU and NPR?

10:30:41

SANGER(laughs) Right. Yeah, and NPR. They would probably -- people around here would probably say, now, wait a minute. Remind me again. So...

10:30:51

REHMI don't think you think this is so funny, Clifford.

10:30:54

MAYNo, I think it's very funny.

10:30:57

MAYBut I think there's a serious aspect, too, in part because we've had something like 30 percent of those released from getting -- actually go back to the battlefield, some in very senior positions, which is not to say that David's wrong. There has to be a reintegration. They have to update themselves. These guys are a lot healthier than Bowe Bergdahl because they have been treated much better. They've been given good food, top of the line medical treatment, the same as our troops receive down there.

10:31:18

MAYThey also can be doing useful things for the Taliban while in Qatar. There's a memorandum of understanding between our government and the Qatari government. I don't think the -- I know the public hasn't seen it. You may know whether any members of Congress have seen it. We don't know -- but if we don't know what's in it, we don't know. Here's the most important thing. They can be -- they're not supposed to be fundraising. On the other hand, anybody who raises funds, whether at AMU or for a foundation, knows there are ways to do it without asking for money, simply saying, in a year or two, we'll be back in power. We'll remember who our friends are.

10:31:47

REHMI'm getting a little uncomfortable with this comparison between WAMU and the Taliban.

10:31:54

MAYAnd the Taliban -- we should not be. That's exactly right, yeah.

10:31:57

COLEYeah, I want to keep the WAMU out of it. They're not on the terrorist designation list yet.

10:32:00

REHMRight.

10:32:01

COLEBut I think one thing to keep in mind here, as David reminded us, Qatar and the NSA are going to be keeping eyes on these guys. Our own laws make it a crime to engage in any kind of material support to a terrorist organization, including providing advice. So if these guys are heard, even providing advice to the Taliban in Afghanistan, they could be brought back to the United States, prosecuted and locked up for a very long time.

10:32:28

MAYDavid, the Taliban has offices in Qatar. They had what looked like a beautiful embassy that's been closed but they still -- there is -- that is, I'm sure -- and maybe you can tell me I'm wrong, maybe they've -- that they are sitting down with members of the Taliban who are there on a diplomatic basis and they are talking. Maybe they are planning. Maybe they are thinking about their roles when they get back to Afghanistan.

10:32:47

REHMAnd you're listening to "The Diane Rehm Show." David Cole, how strong do you think this agreement between the U.S. and Qatar is in regard to these five released prisoners?

10:33:08

COLEWell, I think, you know, since none of us have seen the memorandum of understanding, it's very hard to know how strong it is. You know, The Times had a story over the weekend saying that Qatar has a lot at stake in sort of coming through and making sure that these individuals do not engage in any kind of (word?) activity.

10:33:25

REHMWhy? What's at stake?

10:33:27

COLEThey're trying to develop their sort of role in the world as a go-to diplomatic negotiator. They've lost a lot of support in the Middle East. They want to be -- gain the support of the United States. And so there's a lot of diplomatic reasons to believe that they are going to do their best to hold these people and check in. As I suggested, there are laws in place that allow us to take consequence -- to take action against these individuals if they, in fact, try to violate the terms. But at the end of the day, we don't know the terms of the actual...

10:33:58

MAYAnd we're not invading Qatar (unintelligible)...

10:33:59

REHMAll right. I'm going to open the phones now, 800-433-8850. Let's go first to Keevan in Evansville, Ind. Hi. You're on the air.

10:34:17

KEEVANHello, Diane. Thank you for taking my call.

10:34:19

REHMSurely.

10:34:20

KEEVANI've just got a quick question. Then I'll get off the phone and listen to the reply. My question is this. If we negotiate with terrorists, does this put our military men and women into more harm's way by the fact that other terrorist groups might consider kidnapping some of those people and then trying to exchange them for the same type of things?

10:34:45

REHMAnd that certainly was one of the issues raised by members of Congress, David Sanger.

10:34:53

SANGERThis is an issue on which there's a lot of disagreement, and I've had members of Congress tell me they think it makes American troops more vulnerable. At the same time, by the time these five actually get released from Qatar and so forth, U.S. will have ended its combat role in Afghanistan. We'll be down to, if the president's plan is accepted, about 9,000 Americans who are still largely going to be confined to base.

10:35:18

SANGERAnd I think that many Americans are targets for kidnapping anyway. We just saw an American taken in North Korea over the weekend. And it's not at all clear that -- you know, the degree to which this increases the risk. John Kerry came out yesterday very strongly and said he thought it was baloney. And then Dianne Feinstein came back and said, I'm not quite sure how -- you know, how you can necessarily say that. So I'm not sure this is a knowable thing.

10:35:44

REHMHow do you feel about it, Cliff May?

10:35:47

MAYI have a couple of reactions. One is, if we are going to say, well, realistically, we have to negotiate with terrorists, what is the argument against negotiating with al-Qaeda directly, with having Ayman al-Zawahiri come to Geneva and we sit down with him? I think we need to think that through.

10:36:02

MAYI also worry not just about our soldiers but about other Americans abroad. The Taliban Haqqani network -- and we should mention that that's who actually held Bergdahl -- they're -- some of their people are very sophisticated. Some are not. They may say, look, if the Americans will trade five top commanders for one soldier, what will they trade for a businessman, for a tourist, for a journalist?

10:36:23

MAYNow, we may say, well, we'd never trade anybody -- we will never give you anything for a journalist, a tourist or a businessman, only for a soldier. That's our principle. But what an odd principle that is since the soldier's mission is to protect our civilians. And we're saying our civilians we will not protect.

10:36:37

REHMDavid Cole.

10:36:38

COLEAnd that's why I don't think you can have a hard and fast rule or principle about it. At the end of the day, people's lives are at stake, and you have to make judgment calls in particular instances. And, you know, again, the notion that you don't negotiate with terrorists, we wouldn't have had the Good Friday of course in Northern Ireland if the British said, we're not going to negotiate with terrorists. You know, we're never going to resolve the Middle East conflict in Israel unless there's a negotiation. And if al-Zawahiri would come to Geneva and agree to negotiate, now all the better, right? We should -- so it just depends on what is at stake.

10:37:10

SANGERAnd, you know, Cliff raised the Iran negotiations. Iran is designated as the greatest state sponsor of terrorism. We're negotiating with them.

10:37:18

COLEGood point.

10:37:18

REHMDavid Sanger of The New York Times, David Cole, professor of law at Georgetown University, Clifford May of the Foundation for Defense of Democracies. Short break here. More of your calls, your email when we come back. Stay with us.

10:39:55

REHMAnd now, more of your questions, comments. We'll go back to the phone to Jared in Walton Beach, Fla. Hi there, you're on the air.

10:40:07

JAREDHi. Thanks, Diane.

10:40:08

REHMSure.

10:40:09

JAREDI just wanted to comment on, actually, the legal status of Bowe Bergdahl and the situation. Now, the distinction between a Prisoner of War -- he is a Prisoner of War in the fact that he was held prisoner during a time of war. But in the legal effect, he was actually a prisoner. A POW does -- says that he would be held by a uniformed military acting on a sovereign -- from a sovereign nation.

10:40:34

JAREDAnd he's a prisoner of a terrorist organization, which the legal, you know, definition is completely different and therefore dictates we really can't do a prisoner exchange the same way we would do with a POW in a war, in the past that we've seen. We've done prisoner exchanges before, but that is a completely different story.

10:40:51

REHMAll right. Let's see what our legal expert, David Cole, has to say.

10:40:57

COLEI don't think it's a very significant distinction here. The reality is we've been in a armed conflict with the Taliban and al-Qaeda for a extended period of time. We treat the people from the Taliban as essentially as POWs. It's a new kind of conflict where you don't have a state on the other side. But the principles, we've tried to apply them by analogy to this conflict. And so I think he's a Prisoner of War. And the bottom line is, he was fighting for us, for our nation, and we therefore have an obligation to try to do what we can to bring him back.

10:41:36

REHMI want to shift this conversation just a little bit. Clifford May, what do you think should happen to Guantanamo Bay, now?

10:41:48

MAYVery difficult question, as it has been for many, many, many years. It may be that releasing the five most dangerous detainees makes it easier for the president to close Guantanamo though I think it may still not be easy. Congress does not want, and on a pretty much bipartisan basis, does not want to transfer these detainees, here, to the U.S. I think there are ways to do that, but you would, I think, you would need different laws that Congress and this administration, the previous administration were reluctant to set up.

10:42:21

MAYThe president has the authority to release everybody at Guantanamo, but that would be highly controverse were he to do so. There are -- the number of prisoners or detainees -- and they're not -- they really are detainees, and they're being -- the reason to have detainees at Guantanamo is to keep them off the battlefield and not recharge the enemy during a time of war. One theory is that once we are totally out of Afghanistan, the war is over. The other theory is, now there's a global war taking place and in a global conflict. These detainees will be very active once they get out. And...

10:42:51

REHMDavid Cole, what should happen to Guantanamo? How many people are still there?

10:42:57

COLEI think there's a 149 detainees left. I think it should be closed. I think it's actually quite likely at this point that it will be closed...

10:43:06

REHMBecause these...

10:43:06

COLEWell, there's -- there are seven -- of the 149, 78 of them have been cleared for release. And so it's just a question of ensuring that we have -- we're satisfied with conditions in the country to which they are to be released. Most of them are from Yemen, and that's obviously a big question mark. But once we are satisfied with security arrangements, vis-à-vis them in Yemen -- and we're working on buttressing those right now -- a huge number can be released at that point. Thirty of them are either on trial for war crimes or slated to be on trial for war crimes. And most of them will be convicted, I'm sure. And then these...

10:43:41

REHMAnd end up being U.S. prisoners?

10:43:44

COLEWell, they could well end up serving the rest of their time in a U.S. prison. Three of them are serving current convictions. And then there's about 38 who are originally identified as too dangerous to release but too difficult to try, slated for indefinite detention. And those are the difficult ones, right. They're reevaluating all of them, and it may well be that at this point, 12 years in, some of them are no longer too dangerous to release.

10:44:12

COLEAt the end of the day, when the conflict ends with al-Qaeda, they have to be released because the only justification for their release is the existence of an ongoing armed conflict. And what would that mean? It would mean that 30 more dangerous people are let out into the world. Well, there are already hundreds, if not thousands, of dangerous people, terrorists, that we are keeping our eyes on around the world that we don't have in detention that pose some kind of a threat to us.

10:44:38

COLEWe live with that threat. And at the end of the day, you have to realize that you, in the modern world, you have to live with certain risks and certain threats. You can't have a risk-free environment. And so I think we can close it, releasing the people who've been cleared, trying the people who've been identified as triable and then with the individuals sort of in the middle there, either reassessing them or, at the end of the day, releasing them if the armed conflict is over.

10:45:04

REHMDavid Sanger.

10:45:06

SANGERYou know, Diane, there are legal arguments for why Guantanamo should be closed. And David was clear on the most compelling of those, which is that if you keep holding people after the period of conflict is over, you're creating a president that could be used against us at some point with Americans who are held.

10:45:26

SANGERThere are political considerations. Obviously, members of Congress all screamed when it thought that some of these detainees, particularly those 38, would be moved back to the United States. But then there's a strategic argument, which has sort of been lost in the midst of this. When I travel around the world, doing other reporting, the two things that people -- that resonate with people, particularly in the Middle East, about American power, these days, are drones and Gitmo.

10:45:58

SANGERAnd it's one of the reasons that Bob Gates and Condoleezza Rice, in 2006 or 2007, when Gates joined the Bush administration, came together to try to convince President Bush that the strategic damage being done by Gitmo's continued operation was greater then any benefit we were getting from continuing to have it there. And they were shouted down. And that was an interesting argument. And then, of course, President Obama picked up an element of that when he promised to close it within a year and discovered that that was a promise he couldn't fulfill. But it's the strategic argument that, I think, we have to begin to debate.

10:46:39

REHMAnd who is it specifically who is preventing President Obama from closing down Gitmo, David Cole?

10:46:52

COLEWell, I mean, I think it's Congress, and it's the difficulties of figuring out where and how to move people back to countries where we're satisfied with continuing security. But it is Congress, has created a, a real barrier because they have said you -- under no circumstances can you spend any funds to transfer anyone at Guantanamo, to the United States, even if you're going to try him criminally in the United States.

10:47:19

COLEAnd -- but I will say that in the most recent Senate Arms Services Committee version of the law that imposes those restrictions -- it's an annual authorization act that imposes those restrictions -- they have agreed to a different provision that would say, he can bring people to the United States if he first provides a report on various consequences of what would happen if they're brought to the United States and then if Congress doesn't pass a joint resolution, which is essentially a law subject to veto override, saying they can't come.

10:47:56

COLESo they're create -- it seems like there's -- then there was bipartisan support for that. There seems like there's bipartisan support now, at least in the Senate Arms Services Committee, for opening the door to allowing the -- some of the detainees to be brought to the United States, so that we can, in fact, close Guantanamo.

10:48:12

REHMAll right. Let's go back to the phones to Mike in Cincinnati, Ohio. Hi, you're on the air.

10:48:21

MIKEHi, Diane, I have two quick points. One was, in terms of whether Obama should've informed Congress, the statute that you guys have referred to, I thought was the, NDAA of, it was either 2011 or 2012. And Obama signed that himself. So I feel that, you know, it presents sort of a problem for him because he's created a (word?) here, where he said, I'm going to work without Congress and work by executive order. And this seems to reinforce that tone that he set.

10:48:50

MIKEJust acting on his own. And then my second point is, in terms of whether or not we should've traded the prisoners, my impression is that we actually went in and hunted these people down and removed them from the country and detained them for years because they were so dangerous. And, I think, the timing of this is suspect because we just declared that we're going to be pulling out of Afghanistan.

10:49:13

MIKESo right at moment, we released five of what we consider to be the most dangerous prisoners to, essentially, ultimately go back in there and create more chaos for the Afghani people. So I'm wondering, you know, how do they feel about this and what kind of signal does it send to them about our intentions?

10:49:30

REHMAll right. The statute, David?

10:49:33

COLEYeah. And on the legal question, yeah, he signed the statute. But the statute is a general statute that governs release of Guantanamo detainees. It does not address the specific and exigent circumstance of a situation, where, in a negotiation over the life of a detained American POW. And the president, I think, reasonably interpreted that law not to apply to that situation, for as I suggested before, the reason -- the thought experiment.

10:50:02

COLEHad Congress, you know, had some member of Congress proposed making the law say, you have to give us 30 days' notice, even if it might cause the loss of an American POW's life, no one would've voted for that. And so I think it's a reasonable construction of the statute. In addition, there's a constitutional argument that the president has unilateral authority to negotiate the terms of his own -- the -- his members of fighting forces return.

10:50:33

REHMClifford.

10:50:34

MAYI agree with what David Cole is saying with one slight objection, which is that, yes, I think, constitutionally he was well within his rights to make this decision. But his -- but, one, he objected when President Bush used constitutionally objections to statutory authority in the past, that when he was a senator, he was all against what he's doing now. And his spokesman, Jay Carney, also said, a year ago, that he would indeed consult with Congress. More -- the other question that was asked, I think, is a (word?) one.

10:51:01

REHMThe timing and the message it sends.

10:51:02

MAYWell, yes, the fact of the matter is the war in Afghan -- even just the war in Afghan, the conflict in Afghanistan, not the global war, it is not over for another two years. You are replenishing the ranks. If I am at, right now, an Afghan who has been supporting the American effort and the Americans have just released these five Taliban commanders, I must feel both betrayed and gravely in danger.

10:51:23

REHMDavid Sanger.

10:51:24

SANGERThey do. And we wrote a story this morning that I did with my colleague, Matt Rosenberg, in Afghanistan, that discusses how the Afghans are viewing this. Now, that said, the Afghans also help participate in syncing the 2011, 2012 agreement because they didn't want to negotiation underway with the Afghan-Taliban, over how they would perhaps reintegrate. And, you know, we forget, the Taliban, under different names and in different ways, have been around in Afghanistan for a 100 years. And they were there before we got there, and they're going to be there after we leave.

10:52:06

REHMAnd indeed, I have an email here from Mark in Arkansas who says, "We're talking about these Taliban prisoners as though they were al-Qaeda. The Taliban had no beef with us until we invaded their country. I still have a photo of Taliban leaders visiting President Reagan in the White House."

10:52:35

MAYCan I just mention this? That, first, the reason we intervened in Afghanistan was because the Taliban gave refuge to al-Qaeda at a time when Osama bin Laden, living in Kandahar, was planning the attacks against what he called the far enemy. Second, all five of these commanders that we're speaking of here, all five, are -- have been deeply involved with al-Qaeda. They are not separate from it.

10:52:54

REHMAnd you're listening to "The Diane Rehm Show." And here is an email from Otto who says, "The war's not over until the Taliban declares that Jihad is over. You do not release Prisoners of War until the war is over. Those five are similar to the Nazi leaders in World War II. They need to answer for their crimes. Do not be surprised if more action like the trouble in a Pakistan airport today comes up. President Obama has given the Taliban a license to kill." David Sanger.

10:53:39

SANGERWell, as Cliff pointed out before, there have been attacks and more attacks and more attacks against the Pakistani government, long before this release happened. And, I think, you know, the dynamic -- sometimes we forget it's not always about us. And the dynamic, in this case, is about the Pakistani Taliban versus the Pakistani government. And once we are gone from Afghanistan, the conflict, is against -- going to be the Taliban versus the new Afghan government.

10:54:09

REHMClifford May, the FBI is apparently investigating threats against Bowe Bergdahl's family. What does that tell you about the anger out there, about this exchange?

10:54:21

MAYWell, there's a lot of it, and that kind of anger, obviously, makes no sense in the people who are -- it's really -- I mean, and I'd like to say it's silly, but it's tragic that they have to worry about that. And the FBI should investigate that aggressively.

10:54:35

REHMAnd why do you think that is happening, David Sanger?

10:54:39

SANGERWell, I think it has to do with what we've heard from others in Bowe Bergdahl's unit and those around them, this allegation which seems a little bit hard to prove, that Americans died in the search for Bergdahl. They died when they were on patrols, outside that base. They have all said that they were told if they were in a town and there was any evidence of Bergdahl was there, they should go investigate. But they would've been doing patrols outside that base, even if Bergdahl had not disappeared.

10:55:10

REHMSo what...

10:55:10

SANGERAnd so you'd have to know how many would've died in these tragic attacks, in the absence of the Bergdahl...

10:55:17

REHMSo what do we know about these hearings to be held on Capitol Hill regarding Bergdahl?

10:55:26

SANGERYou're going to hear, you know, there are two purposes to Congressional hearings. Some Congressional hearings are about finding facts on occasion that happens. And some Congressional hearings are about letting members of Congress vent. And that always happens. And so the question is, which of the mix is this going to be?

10:55:44

REHMWhat do you think, David?

10:55:45

COLEWell, I think, you know, there have certainly been questions raised about Bergdahl, but he's innocent until proven guilty. And if an investigation determines that there is something to charge him with, he should be charged, and he should get a trial. But we shouldn't be, you know, essentially labeling him guilty in the press, which I think some have been -- have done.

10:56:03

REHMAnd finally, Linda in Virginia says, "A question I have about Sgt. Bergdahl is what role, obligation, does the U.S. Army bare in allowing Sgt. Bergdahl to remain in a combat unit after he had already left his post, not once but twice?" That's certainly one of the questions that will be examined closely. David Cole, David Sanger, Clifford May, thank you all so much.

10:56:40

SANGERThank you.

10:56:40

MAYThank you.

10:56:40

COLEThank you.

10:56:41

REHMAnd thanks for listening, all. I'm Diane Rehm.

10:56:47

ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Denise Couture, Susan Casey Nabors, Rebecca Kaufman, Lisa Dunn, Danielle Knight, and Alison Brody. The engineer is Toby Schreiner. Natalie Yuravlivker answers the phones. Visit drshow.org for audio archives, transcripts and podcasts. Call 202-885-1200 for more information. Our email address is drshow@wamu.org, and we're on Facebook and Twitter. This program comes to you from American University in Washington, D.C. This is NPR.

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